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Thursday, 9 February 2017

Whether Infidelity, By Either Spouse, Is On Equal Footing?

The discussion of the evidence regarding the respondent allegingthat the appellant was interested more in other girls and less in him, anallegation which falls far short of a plea of adulterous relationship, butmaterial enough to decide the strange matrimonial relationship betweenthe parties, is in paragraph 58 of the impugned decision. It reads asunder:-“58. It is settled law that the acts of cruelty with dates andoccasions and the places where such acts were committedmust be specifically mentioned in the petition. Thepetitioner has, however, failed to do so. The petitioner hasleveled different baseless allegations and has made noefforts to prove the same. The petitioner merely claimedthat the respondent has leveled baseless allegations of hishaving extramarital affairs with different women/girls andthis caused him cruelty. I am not in conformity with the petitioner. It has come over the record that the petitionerhimself had been indifferent towards the respondent. He didnot offer any explanation to the respondent as to why thegirls/women had been calling him. In such circumstances,she would have thought that the petitioner had extra-maritalrelations with other girls/women. It has, however, comeover the record that she has not specified any girl or womanwith whom the petitioner had alleged extra maritalrelations. In fact, she has been throughout ready andwilling to join the company/society of the petitioner. If therespondent had any doubt/suspicion against the petitioner,that were due to his conduct only and he alone isresponsible for the same. Moreover, the allegations madeagainst the husband do not in terms of mental torture andagony necessarily have a similar impact.The reason why afalse charge of unchastity against the wife is viewedseriously, is because of the high moral ground of which thefidelity and commitment of Hindu wives is placed towardsthe husbands. A false allegation of infidelity made againstthe husband can be treated as mental torture only if suchtorture is proved as a fact. The social milieu in which theparties live, their value system and outlook also assumeimportance in such a situation.”10. The finding returned by the learned Judge Family Court against theappellant proceeds on the assumption that the testimony of the respondentproves that the appellant was in touch over the telephone with manywomen and this was the reason why he was indifferent towards therespondent. The learned Judge Family Court has held against theappellant on the ground that the appellant had to render an explanation asto why so many women were calling him. The learned Judge has heldthat the appellant had to remove the suspicion from the mind of his wife.A gender bias approach to the issue is revealed, when the learned Judgereasons that unchastity by a wife is to be viewed seriously because ahigher level of fidelity is expected from a wife. An allegation ofinfidelity made against the husband cannot be treated as mental torture. The approach by the learned Judge is totally perverse and contrary to law.An act of infidelity by either spouse, irrespective of the gender is on anequal footing and would cause mental cruelty to the other spouse with thesame intensity. The assumption by the learned Judge that the respondenthas established the appellant being in touch with many women isincorrect, for the reason it was an allegation made by the respondentagainst the appellant and she had to prove the same.

1. Petition filed by the appellant seeking annulment of the marriagebetween the appellant and the respondent on ground of desertion andcruelty has been dismissed by the learned Judge Family Court videimpugned judgment and decree dated March 12, 2012. We note at theoutset that in the heading of the judgment the date of pronouncement isrecorded as March 12, 2011, but while signing the decision the datementioned is March 12, 2012.2. The parties were married on December 04, 1992 and were blessedwith a son on November 25, 1993 and a daughter on August 19, 1996.The children are major as of today and are with the appellant. 3. Case pleaded by the appellant was that one Bachraji Chochoraria, amaternal uncle of the respondent brought the two families to discuss thematrimonial alliance. The marriage never took off because therespondent always remained aloof and haughty with the appellant and hisfamily. In March, 1993, for no apparent cause or reason the respondenttried to commit suicide by hanging herself. Her maternal uncle BachrajiChochoraria was informed. Before him the respondent simply criedwithout stating the reason for her action. That on flimsy excuses therespondent used to leave the matrimonial house at Kolkata and stay withher parents at Delhi. She would break her bangles, a most inauspiciousthing for a Hindu wife. She would bang the door. Shout and yell in thehouse for no apparent reason. When she was in the family way in theyear 1993, she left for Delhi where the son was born on November 25,1993, information whereof was not given to the appellant and he learnt ofbeing blessed with a son when he rang up the respondent from Kolkata toenquire about her health. The appellant and his family members came toDelhi but were given a cold reception in the parental house of therespondent. To his surprise the appellant saw the respondent not breastfeeding the new born baby and giving him buffalo milk. In spite ofrequests the respondent did not come to Kolkata with the baby boy. Shedid not come to her matrimonial house till April, 1994, when appellantcame to Delhi only to find the baby boy admitted at St.Stephens Hospital.That the respondent had no respect for her in-laws. Appellant’s motherbeing bed ridden was not even given a glass of water by the respondent.That the respondent had a violent temper. That the appellant had to shiftfrom the rented flat which was the matrimonial house of the parties onDecember 06, 2005. On December 23, 2005 the appellant was compelledto take shelter at his sister’s residence. On March 24, 2006, in the presence of respectable persons, a mutual agreement was executed as perwhich the appellant undertook to bear all expenses for the children andthe respondent with an understanding that if within a year of theagreement the parties could not resolve the pending issues they wouldagree to a divorce by mutual consent. On May 12, 2007 the respondentleft Kolkata with the children. The parties could not patch up.4. In the written statement filed by her, the respondent denied theallegations made against her. Admitting that the appellant walked out ofthe matrimonial house on December 23, 2005, the respondent claims thisto be a deliberate act intended to leave respondent and her children at themercy of God. As per the respondent, the appellant was under theinfluence of his parents and it was they who used to dictate his life. Toquote: ‘even the petitioner who claimed himself to be educated person, infact behaved like a uncultured, uncivilized and child like person muchunder the influence of his parents, in the past 15 years of matrimonial lifeand still indulged in thumb sucking like a child.’ As per the respondent,the family of the appellant did not want a daughter-in-law but desired adomestic servant to look after the ailing mother of the appellant and hertwo aged parents. From the third day after the marriage the respondentwas asked to mop the floor of the matrimonial house. She was taunted bythe appellant after marriage that her family was not up to the standard ofthe appellant’s family. She has pleaded that ‘the petitioner is so cruel,irritable and violent in nature and appears to be suffering from somecomplex or psychiatric problem and has little or no respect for therespondent.’ Denying having attempted to commit suicide in March,1993, respondent pleads that in April, 1993, at the marriage of a relativeshe saw the appellant roaming with another girl and when she enquiredfrom the appellant about the girl he shouted at her and abused her. Shesubsequently learnt that the appellant was having several contacts withother women who used to contact him on the phone. The day next i.e.April 05, 1993, her in-laws contacted her maternal uncle and madebaseless allegations of her suffering from some mental disease. She wascompelled to stay with her maternal uncle for some time and on theinsistence of her father-in-law, to buy peace and returned to hermatrimonial house she gave in writing that if anything happens to her,neither the appellant nor his family members would be responsible. Shedenied not breast feeding the infant son. She pleaded that when she gotpregnant for a second time in the year 1995, the appellant gave her moneyand told her to get the pregnancy terminated. She had no alternative butto get the pregnancy terminated and had to visit the doctor herself withneither appellant nor any member of the family accompanying her.Admitting that her husband left the matrimonial house on December 23,2005, the respondent pleaded that this was as per plan. Being the end ofthe month, there was hardly any ration in the house. For two days theneighbours provided food. Appellant threatened to stop payment of theelectricity bills and even the school fee. The respondent explains thecompromise executed by her on March 24, 2006 as her compulsionbecause under it she was assured at least `10,000/- per month plus a roofover her head. As per her, things became unmanageable with the meagermoney she had and thus she was compelled to leave Kolkata and join herparents at Delhi along with the two children.5. In the rejoinder, the appellant denied the counter allegations madeagainst him and with respect to the pleadings of the respondent that whenshe became pregnant in 1995 she was forced to terminate the pregnancy,he pleaded that the appellant was shocked to learn of said fact and that itconstituted cruelty because respondent terminated the pregnancy without his consent and that he was not aware of said fact till the respondentpleaded so in her written statement.6. The pleadings of the parties show that each alleges the other to becold in the matrimonial bond and indifferent to the feelings of the other.The evidence led by the parties is in harmony with their respectiveversions and we find the cross-examination conducted by learned counselfor the parties not up to the mark and thus we look to certain criticalfeatures concerning the matrimonial life of the parties which emergesfrom the evidence.7. The lack of warmth by the appellant, pleaded by the respondent ison account of he being under the control of his parents and being moreinterested in other girls. In her deposition the respondent has stated onoath :-“On 4-4-1993 when I went to attend marriage of myrelative, I saw my husband roaming with another girl andwhen I enquired about the said girl, he started shouting,abusing and threatening me. When I brought this fact to thenotice of my mother-in-law and other family members theyall started supporting my husband. Subsequently I came toknow that my husband is having contacts with other womensince the phone calls used to come from different women.Even sometimes children have picked up the calls and theyknow about it.”8. She was subjected to cross-examination on this assertion made byher. Relevant extracts of her statements during cross-examination are:-“I do not know the name, address and description of the girlseen by me on 04.04.1993, who was roaming with myhusband. I had no talk with that girl. I had never seen thatgirl thereafter. The said girl did not meet on 04.04.1993. Ihad not disclosed about that girl to anyone. I attended thephone calls of the girls at my in-laws house. I attended twophone calls of those girls on the mobile phone of myhusband in the same night. I had read the phone number. I tried to contact on the phone number from which I receivedthe phone calls at the mobile phone of my husband. I triedto contract that girl on the next day from the landlineinstalled at the residence of my in-laws house. I do notremember that phone number but the same must be writtenin the diary. I do not remember in which diary I noted downthat number. Whenever any phone call is received makinginquiries about my husband, once the said phone was pickedup by the children. I do not remember the year when thatphone was picked up. It is wrong to suggest that myhusband was not roaming with that girl on 04.04.1993 orthat children have not picked up the calls. I came to knowfrom the phone calls which I received twice that my husbandhad contacts with other girl. The phone calls received byme was from the same girl. The phone calls received by mewere one after the another within a very short interval. Iinquired from that girl about her name and address andpurpose. She had not disclosed her name but gave theaddress. She gave me the purpose for calling as hergrandmother was ill for which she required financialassistant from my husband. It is wrong to suggest that thepetitioner was not having contacts with other girls.”9. The discussion of the evidence regarding the respondent allegingthat the appellant was interested more in other girls and less in him, anallegation which falls far short of a plea of adulterous relationship, butmaterial enough to decide the strange matrimonial relationship betweenthe parties, is in paragraph 58 of the impugned decision. It reads asunder:-“58. It is settled law that the acts of cruelty with dates andoccasions and the places where such acts were committedmust be specifically mentioned in the petition. Thepetitioner has, however, failed to do so. The petitioner hasleveled different baseless allegations and has made noefforts to prove the same. The petitioner merely claimedthat the respondent has leveled baseless allegations of hishaving extramarital affairs with different women/girls andthis caused him cruelty. I am not in conformity with the petitioner. It has come over the record that the petitionerhimself had been indifferent towards the respondent. He didnot offer any explanation to the respondent as to why thegirls/women had been calling him. In such circumstances,she would have thought that the petitioner had extra-maritalrelations with other girls/women. It has, however, comeover the record that she has not specified any girl or womanwith whom the petitioner had alleged extra maritalrelations. In fact, she has been throughout ready andwilling to join the company/society of the petitioner. If therespondent had any doubt/suspicion against the petitioner,that were due to his conduct only and he alone isresponsible for the same. Moreover, the allegations madeagainst the husband do not in terms of mental torture andagony necessarily have a similar impact. The reason why afalse charge of unchastity against the wife is viewedseriously, is because of the high moral ground of which thefidelity and commitment of Hindu wives is placed towardsthe husbands. A false allegation of infidelity made againstthe husband can be treated as mental torture only if suchtorture is proved as a fact. The social milieu in which theparties live, their value system and outlook also assumeimportance in such a situation.”10. The finding returned by the learned Judge Family Court against theappellant proceeds on the assumption that the testimony of the respondentproves that the appellant was in touch over the telephone with manywomen and this was the reason why he was indifferent towards therespondent. The learned Judge Family Court has held against theappellant on the ground that the appellant had to render an explanation asto why so many women were calling him. The learned Judge has heldthat the appellant had to remove the suspicion from the mind of his wife.A gender bias approach to the issue is revealed, when the learned Judgereasons that unchastity by a wife is to be viewed seriously because ahigher level of fidelity is expected from a wife. An allegation ofinfidelity made against the husband cannot be treated as mental torture. The approach by the learned Judge is totally perverse and contrary to law.An act of infidelity by either spouse, irrespective of the gender is on anequal footing and would cause mental cruelty to the other spouse with thesame intensity. The assumption by the learned Judge that the respondenthas established the appellant being in touch with many women isincorrect, for the reason it was an allegation made by the respondentagainst the appellant and she had to prove the same.11. The respondent could not disclose the name of the girl or girls withwhom the appellant, as claimed by her, used to speak over the telephone.She claims that she attended phone calls made by girls on the mobilephone of her husband. We find it unnatural for a husband to leave hismobile phone unattended in the night, to be accessed by the wife, if he isin touch with many girls over the mobile telephone. In her crossexamination,the respondent has said that same night she attended twophone calls received on the mobile phone of her husband which wasmade by girls. She claims to have noted the mobile number and tried tocontact the maker of the call the next day from the landline. She couldnot recollect the number but claimed to have noted it in a diary. Sheclaims that qua one phone call she enquired the name and address of thegirl, who gave the address but not her name.12. The deposition of the facts by the respondent is contrary to humanconduct and does not satisfy the test of reason. Her deposition is notconvincing and therefore the stand of the respondent that the marriagebetween the parties remained cold due to the appellant being moreinterested in other women is not established. The marriage between theparties was cold is the admitted case of both. The reason for the relationsbeing cold as advanced by the respondent having failed, we turn to the reasons advanced by the appellant to see whether they satisfy the test ofreason.13. As per the appellant, for no ostensible reason the respondentthreatened to commit suicide using a rope in March, 1993 and this scaredhim and his parents who contacted the maternal uncle of the respondentin Kolkata who had to intervene. As per the respondent when shecomplained to her in-laws that her husband was roaming with a girl in thenight of April 04, 1993, they supported her husband and the next daycalled her maternal uncle and asked him to take her with him, allegingthat she was suffering from a mental disorder.14. The petition for divorce was filed in the year 2007 and the partieswere recalling events of the year 1993 when they deposed in the year2010 and 2011. Obviously with passage of time events of the past wouldbe somewhat hazy. That around March or April, 1993 the respondentwas taken by her maternal uncle to his house in Kolkata is an admittedcase of the parties. The unconvincing testimony of the respondentconcerning her husband being in touch with many girls and the incidentof April 04, 1993 twisted against her and the next day she being sent withher uncle, when weighed against the version and testimony of theappellant, that in March, 1993 she was sent to the house of her uncle, whowas summoned to the matrimonial house when the respondent picked upa rope and threatened to hang herself probabilizes the version of theappellant.15. Unfortunately the impugned judgment does not even note thepleadings of the parties on this aspect of the matter and much less theevidence.16. Though in the petition filed seeking divorce on ground of crueltythe appellant has not pleaded that the unilateral abortion undergone by the respondent without his consent amounted to cruelty, but learned counselfor the appellant urged that the reason thereof was the lack of knowledgeby the appellant of said fact which came to his notice when therespondent filed the written statement. As noted above, in the replicationthe appellant pleaded that he was shocked to learn of said fact and thatthis act of the respondent constituted mental cruelty because therespondent terminated the pregnancy without his consent. We find thatthe impugned judgment does not deal with this aspect of the matter andthus we proceed to note the pleadings of the respondent and therespective evidence on this fact in issue led by the parties.17. In the written statement filed by the respondent she pleads :-“It will be worthwhile to mention here that in 1995 therespondent got pregnant for the second time but thepetitioner told the respondent that she had to go to herparent’s home at Delhi for delivery since his mother will notlook after her. However when the respondent told thepetitioner that her father has suffered losses and parents arenot in a position to afford the delivery expenses, thepetitioner got annoyed and angry and pushed and slappedher and told the respondent to abort the child. Thepetitioner gave some money and told the respondent to goand get the pregnancy terminated. Under suchcircumstances when her husband was not even supported,the respondent was left with no other alternative than to getthe pregnancy terminated much against her wishes and hadto pass through mental agony and distress. Neitherpetitioner nor any family member even accompanied therespondent and she herself had to go to doctor for abortionand suffer for mental agony, distress and trauma.”18. The appellant stated on oath that he did not know that his wife waspregnant in the year 1995 and denied in cross-examination that he or hisfamily members forced her to undergo an abortion. In her deposition therespondent deposed in support of the case pleaded by her in her writtenstatement. During cross-examination she stated :-“It is correct that the consent of the husband is required forabortion. However, if the doctor is known, no consent isrequired. No consent of my husband for the abortion wastaken. My abortion took place in Watkins Nursing Home.No form was got filled by the doctor of that nursing home.”19. The testimony of the respondent is not convincing. On the onehand she admits that consent of the husband was necessary for her toundergo the abortion and in the same breath she states that the consent ofher husband was not taken. The date when the respondent underwent theabortion has not been pleaded by her nor the month of the abortion hascome on record. The reason given by the respondent for she undertakingthe abortion is the year 1995 in her pleadings, which have been notedabove, is that the appellant told her to go to her parents’ home at Delhi fordelivery since his mother would not be able to look after her and she toldthe appellant that since her father had suffered losses he could not affordthe expenses for the delivery and at that the appellant got annoyed,pushed her and slapped her and told her to undergo the abortion. It isagainst human conduct for a husband to force the wife to undergo anabortion on such a trivial issue. In this connection it is relevant to notethat the second child, a daughter, was born to the couple on August 09,1996 and this would mean that the respondent became pregnantsomewhere towards the end of October, 1995 or early November, 1995.This fact leans in favour of the stand taken by the husband that there wasno cause or reason for him to force his wife in 1995 to undergo theabortion.20. The respective pleadings of the parties and their testimony throwslight on their matrimonial life post 1996 till an event which took place in December, 2005, shows that there was constant mutual bickering. Eachhas tried to paint the other black and we do not discuss the evidence onthis aspect for the reason there is nothing in the cross-examination ofeither party which would guide us in any particular direction. Indeed,evidence of allegation and counter-allegation is a word of mouth against aword of mouth and it becomes very difficult to find out where the truthlies because the tendency in matrimonial disputes is to blow up incidentsand that is why certain critical features concerning the matrimonial lifewhich emerges from contemporaneous evidence becomes the soleguiding star for a Judge.21. Ex.PW-1/A is a written memorandum signed by the couple, and sixother persons : Chhagan Lal Baid, Chand Mal Baid, Rajender Sirchara,Manik Chand Setis, Surender Nahata and one Vijay Singh. The formerthree are the relatives of the appellant and the latter three are the relativesof the respondent. The written document records that due to unfortunatecircumstances the couple are living separately since December 23, 2005,and a decision has been taken that the couple would live separately.Expenses for the education of the children will be borne by the husband.The company of the children shall be shared by both couple. It wasagreed that the respondent would continue to stay in the rentedaccommodation which was the matrimonial home of the parties and therent would be paid by the father of the appellant. That the appellant shall,apart from paying the expenses for the education of the children, pay`10,000/- per month to the respondent for household expenditure. Itrecords that the parties would try to reconcile their differences for whichone year time was agreed to, with the further agreement that if within saidone year period the two were not in a position to resolve their disputes,they would separate by mutual consent. It assumes importance to note that on December 23, 2005 the appellant wrote a letter Ex.PW-1/DA torespondent’s father informing him as under:-“Date:23-12-2005To,Shri Bijay Singhji Nahata,1st Floor, Flat No.7,Doctor Complex,Opp.MCD Hospital,Lampur Road,Narela,DELHI-110040Respected Father,This is in further reference to my earlier letter dated 07-12-2005 in which I had requested you to come and take chargeof you daughter in 7 days time. During this time, herrowdily behaviour, intolerable activities and torture haveincreased considerably and it has become impossible for meto continue to live in the house. So I am leaving the houseand sending this letter to inform you.With sincere regards,Yours truly,Sd/Navratan Baid”22. In their oral testimonies, parties may give colour to the pastconduct of each other, keeping in view the current situation in which theparties find themselves, but documented evidence of the past conduct ofthe parties cannot be tainted by their oral depositions and thus we findthat the contemporaneous letter dated December 23, 2005 written by theappellant to the father of the respondent, which makes reference to anearlier letter dated December 07, 2005, brings out the anguish of theappellant. He writes to his father-in-law that respondent’s rowdybehaviour, intolerable activities and torture have increased considerably,rendering it impossible for him to continue to live in the matrimonialhouse and he was forced to leave the matrimonial house. The gravesituation in the matrimonial house resulted in the family membersintervening and terminating in the written memorandum Ex.PW-1/Adrawn up on March 24, 2006. Unfortunately even this evidence has beenoverlooked by the learned Judge Family Court. There is no discussion inthe impugned judgment regarding this evidence.23. The couple are not in disagreement that they could not unite as washoped and expected when Ex.PW-1/A was drawn up and the appellantsought annulment of the marriage by filing a petition in the year 2007.Attempts during mediation to unite the parties or make them agree toseparate by mutual consent have failed. We are in the year 2017.Obviously, the marriage has broken down irretrievably.24. As far as the relations between the parties are concerned, they aresufficiently spoiled. The respondent alleges acts of cruelty and illtreatmentin the form of being virtually treated as a servant in the house,husband having no time for her and interested in other women. Thehusband alleges a somewhat paranoid behaviour of the wife; alleging thatshe would not discharge duties of a house wife and for no cause wouldbreak her bangles; an inauspicious mark for a married lady in the Hinduethos. She threatened to commit suicide. There is also evidence that therespondent prematurely encash a fixed deposit in the name of the minorson and there is no evidence that she was starved of funds. There arenumber of such instances relied by both the parties and we do not think itnecessary to place on record the precise particulars of these allegations.Cruelty is a feeling which one forms in view of the conduct of the otherparty.25. Since December, 2005 the couple are living separately. They arepast the prime of their lives. The children are major. No useful purposewould be served in maintaining the matrimonial bond. Where a marriageis broken down irretrievably, the insistence by one to continue with thematrimonial bond itself would be evidence of the desire to inflict furthercruelty on the other.26. The appeal is accordingly allowed. Impugned judgment and decreedated March 12, 2012 is set aside. HMA No.276/2010 is allowed. Themarriage between the parties is annulled by granting a decree of divorcein favour of the appellant and against the respondent on ground ofcruelty.27. Parties shall bear their own cost.28. TCR be returned. (PRADEEP NANDRAJOG) JUDGE (YOGESH KHANNA) JUDGEFEBRUARY 06, 2017